§587-2 - Definitions.

§587-2 Definitions. When used in this
chapter, unless the context otherwise requires:

"Abandoned infant" means a child who
is three years old or younger and:

(1) Whose parent or parents, as applicable,
regardless of any incidental contact or communication with the child, have
demonstrated an extreme disinterest or lack of commitment for assuming parental
responsibility for the child;

(2) Whose parent's or parents', as applicable,
identity or whereabouts have been unknown to the caretaker for no less than
sixty days, and reasonable efforts have been made to identify or locate the
parent or parents; or

(3) Whose presumed or alleged nonadjudicated father
has failed to assert a claim or interest as a parent for no less than sixty
days if he has knowledge of the birth of the child and that he is the presumed
or alleged father, and whose mother also falls under paragraph (1) or (2).

"Adjudication hearing" means a
hearing held pursuant to section 587-63.

"Aggravated circumstances" means
that:

(1) The parent has committed, or has aided or
abetted, attempted, conspired, or solicited to commit murder or voluntary
manslaughter of another child of the parent;

(2) The parent has committed a felony assault that
results in serious bodily injury to the child or another child of the parent;

(3) The parental rights have been judicially
terminated or divested regarding a sibling;

(4) The parent has tortured the child;

(5) The child is an abandoned infant; or

(6) A court has made a determination regarding a
sibling under section 587-73(a) of the presence of the situation described
under section 587-73(a)(1) and (2).

"Authorized agency" means the
department or other public or private agency, a person, organization,
corporation, and benevolent society or association which is licensed or
approved by the department or the court to receive children for control, care,
maintenance, or placement.

"Child" means a person who is born
alive and is less than eighteen years of age.

"Child protective proceeding" means
any action, hearing, or other civil proceeding before the court under this
chapter.

"Clear and convincing evidence" means
that measure or degree of proof which will produce in the mind of the trier of
fact a firm belief or conviction as to the truth of the allegations sought to
be established. This measure falls between the preponderance standard of
typical civil cases and the beyond-a-reasonable-doubt standard of criminal
cases.

"Court" means one of the family
courts established pursuant to the family court act.

"Criminal history record check" means
an examination of an individual's criminal history record through fingerprint
analysis or name inquiry into state and national criminal history record files,
including, but not limited to, the files of the Hawaii criminal justice data
center; provided that the information obtained shall be used exclusively for
purposes under this chapter and shall be subject to applicable federal laws and
regulations.

"Department" means the department of
human services and its authorized representatives.

"Disposition hearing" means a hearing
held pursuant to section 587-71.

"Family" means each legal parent, the
natural mother, the natural father, the adjudicated, presumed, or concerned
natural father as defined under section 578-2, each parent's spouse, or former
spouses, each sibling or person related by consanguinity or marriage, each
person residing in the same dwelling unit, and any other person who or legal
entity which is a child's legal or physical custodian or guardian, or who is
otherwise responsible for the child's care, other than an authorized agency
which assumes such a legal status or relationship with the child under this
chapter.

"Family home" means the home of the
child's legal custodian where there is the provision of care for the child's
physical and psychological health and welfare.

"Family supervision" means the legal
status created pursuant to this section, section 587-21(b)(2), or by an order
of court after the court has determined that the child is presently in the
legal or permanent custody of a family which is willing and able, with the
assistance of a service plan, to provide the child with a safe family home.
Family supervision vests in an authorized agency the following duties and
rights, subject to such restriction as the court deems to be in the best
interests of the child:

(1) To monitor and supervise the child and the
child's family members who are parties, including, but not limited to,
reasonable access to each of the family members who are parties, and into the
child's family home; and

(2) To have authority to place the child in foster
care and thereby automatically assume temporary foster custody or foster
custody of the child. Upon placement, the authorized agency shall immediately
notify the court. Upon notification, the court shall set the case for a
temporary foster custody hearing within three working days or, if jurisdiction
has been established, a disposition or a review hearing within ten working days
of the child's placement, unless the court deems a later date to be in the best
interests of the child.

An authorized agency shall not be liable to
third persons for acts of the child solely by reason of its possessing the
status of temporary family supervision or family supervision in relation to the
child.

"Foster care" means a residence
designated as suitable by an authorized agency or the court to provide
twenty-four hour out of family home, substitute care for the child.

"Foster custody" means the legal
status created pursuant to this section, section 587-21(b)(2), or by an order
of court after the court has determined that the child's family is not
presently willing and able to provide the child with a safe family home, even
with the assistance of a service plan.

(1) Foster custody vests in a foster custodian the
following duties and rights:

(A) To determine where and with whom the child
shall be placed in foster care; provided that the child shall not be placed in
foster care outside the State without prior order of the court; provided
further that, subsequent to the temporary foster custody hearing, unless
otherwise ordered by the court, the temporary foster custodian or the foster
custodian may permit the child to resume residence with the family from which
the child was removed after providing prior written notice to the court and to
all parties, which notice shall state that there is no objection of any party
to the return; and upon the return of the child to the family, temporary foster
custody, or foster custody automatically shall be revoked and the child and the
child's family members who are parties shall be under the temporary family
supervision or the family supervision of the former temporary foster custodian
or foster custodian;

(B) To assure that the child is provided in a
timely manner with adequate food, clothing, shelter, psychological care,
physical care, medical care, supervision, and other necessities;

(D) To provide all consents which are required
for the child's physical or psychological health or welfare, including, but not
limited to, ordinary medical, dental, psychiatric, psychological, educational,
employment, recreational, or social needs; and to provide all consents for any
other medical or psychological care or treatment, including, but not limited
to, surgery, if the care or treatment is deemed by two physicians or two
psychologists, whomever is appropriate, licensed or authorized to practice in
this State to be necessary for the child's physical or psychological health or
welfare, and the persons who are otherwise authorized to provide the consent
are unable or have refused to consent to the care or treatment;

(E) To provide consent to the recording of a
statement pursuant to section 587-43; and

(F) To provide the court with information
concerning the child that the court may require at any time.

(2) The court, in its discretion, may vest foster
custody of a child in any authorized agency or subsequent authorized agencies,
in the child's best interests; provided that the rights and duties which are so
assumed by an authorized agency shall supersede the rights and duties of any
legal or permanent custodian of the child, other than as is provided in
paragraph (4).

(3) An authorized agency shall not be liable to third
persons for the acts of the child solely by reason of the agency's status as
temporary foster custodian or foster custodian of the child.

(4) Unless otherwise ordered by the court, a child's
family member shall retain the following rights and responsibilities after a
transfer of temporary foster custody or foster custody, to the extent that the
family member possessed the rights and responsibilities prior to the transfer
of temporary foster custody or foster custody, to wit: the right of reasonable
supervised or unsupervised visitation at the discretion of the authorized
agency; the right to consent to adoption, to marriage, or to major medical or
psychological care or treatment, except as provided in paragraph (1)(D); and the
continuing responsibility for support of the child, including, but not limited
to, repayment for the cost of any and all care, treatment, or any other service
supplied or provided by the temporary foster custodian, the foster custodian,
or the court for the child's benefit.

"Guardian ad litem" means a person
appointed by the court under section 587-34 whose role is to protect and
promote the needs and interests of the child or a party.

"Hanai relative" means an adult other
than a blood relative who performs or has performed a substantial role in the
upbringing or material support of a child, as attested to by the written or
oral designation of the child or of another person, including other relatives
of the child, as deemed credible by the court or the department.

"Harm" to a child's physical or
psychological health or welfare occurs in a case where there exists evidence of
injury, including, but not limited to:

(1) Any case where the child exhibits evidence of:

(A) Substantial or multiple skin bruising or
any other internal bleeding,

(B) Any injury to skin causing substantial
bleeding,

(D) Failure to thrive,

(E) Burn or burns,

(F) Poisoning,

(G) Fracture of any bone,

(H) Subdural hematoma,

(I) Soft tissue swelling,

(J) Extreme pain,

(K) Extreme mental distress,

(L) Gross degradation, or

(M) Death, and

the injury is not justifiably explained, or where
the history given concerning the condition or death is at variance with the
degree or type of the condition or death, or circumstances indicate that the
condition or death may not be the product of an accidental occurrence;

(2) Any case where the child has been the victim of
sexual contact or conduct, including, but not limited to, rape, sodomy,
molestation, sexual fondling, incest, prostitution; obscene or pornographic
photographing, filming, or depiction; or other similar forms of sexual
exploitation;

(3) Any case where there exists injury to the
psychological capacity of a child as is evidenced by a substantial impairment
in the child's ability to function;

(4) Any case where the child is not provided in a
timely manner with adequate food, clothing, shelter, psychological care,
physical care, medical care, or supervision; or

(5) Any case where the child is provided with
dangerous, harmful, or detrimental drugs as defined by section 712-1240;
however, this paragraph shall not apply to a child's family who provide the
drugs to the child pursuant to the direction or prescription of a practitioner,
as defined in section 712-1240.

"Imminent harm" means that there
exists reasonable cause to believe that harm to the child will occur or reoccur
within the next ninety days with due consideration being given to the age of
the child and to the safe family home guidelines, as set forth in section
587-25.

"Ohana conference" means a
family-focused, strength-based meeting facilitated by trained community
facilitators designed to build and strengthen the network of protection of the
extended family and the community for the child. Ohana conferences include
extended family members and other important people in the child's life and rely
on them to participate in making plans and decisions. The purpose of the ohana
conference is to establish a plan that provides for the safety and permanency
needs of the child.

"Party" means an authorized agency,
the child, the child's family member or members who are required to be summoned
pursuant to section 587-32(a), any other member of the child's family, or any
other person who is alleged in the petition filed under this chapter or who is
subsequently determined at any child protective proceeding to be encouraging,
causing, or contributing to the acts or conditions which bring the child within
this chapter, and who has been duly served with a summons and a copy of the
petition filed under this chapter; provided that the court may limit a party's
right to participate in any child protective proceeding if the court deems such
limitation of such party's participation to be consistent with the best
interests of the child and such party is not a family member who is required to
be summoned pursuant to section 587-32(a), except as provided in section
587-73(b)(1)(D).

"Permanent custody" means the legal
status created under this chapter by order of the court after the court has
considered the criteria set forth in section 587-73(a) or (e) and determined by
clear and convincing evidence that it is in the best interests of the child to
order a permanent plan concerning the child.

(1) Permanent custody divests from each legal
custodian and family member who has been summoned pursuant to section
587-32(a), and vests in a permanent custodian, each of the parental and
custodial duties and rights of a legal custodian and family member, including,
but not limited to, the following:

(A) To determine where and with whom the child
shall live; provided that the child shall not be placed outside the State
without prior order of the court;

(B) To assure that the child is provided in a
timely manner with adequate food, clothing, shelter, psychological care,
physical care, medical care, supervision, and other necessities;

(D) To provide all consents that are required
for the child's physical or psychological health or welfare, including, but not
limited to, medical, dental, psychiatric, psychological, educational,
employment, recreational, or social needs; and to provide all consents for any
other medical or psychological care or treatment, including, but not limited
to, surgery;

(E) To provide consent to adoption, change of
name pursuant to section 574-5, or to marriage;

(F) To provide the court with information
concerning the child that the court may require at any time, and to submit
written reports to the court stating the then-current situation and other
significant information concerning the child at intervals not to exceed one
year, unless otherwise ordered by the court; and

(G) If the child resides without the home of
the permanent custodian for a period of seven consecutive days, to submit a
written report to the court stating the then-current situation of the child on
or before the tenth consecutive day or the next working day after the date;

(2) Unless otherwise ordered by the court, a child's
family member shall retain, to the extent that the family member possessed the
responsibility prior to the transfer of permanent custody, the continuing
responsibility for support of the child, including, but not limited to,
repayment for the cost of any and all care, treatment, or any other service
supplied or provided by the permanent custodian, any subsequent permanent
custodian, other authorized agency, or the court for the child's benefit;

(3) A family member may be permitted visitation with
the child at the discretion of the permanent custodian; provided that the
exercise of such discretion may be reviewed by the court and the court may
order that a family member be permitted such visitation as is in the best
interests of the child;

(4) An order of permanent custody entered under this
chapter shall not operate to terminate the mutual rights of inheritance of the
child and the child's family members or any other benefit to which the child
may be entitled, unless and until the child has been legally adopted;

(5) The court, in its discretion, may vest permanent
custody of a child in an authorized agency or in subsequent authorized agencies
as is deemed to be in the best interests of the child;

(6) If the department receives a report that the
child has been harmed or is subject to threatened harm by the acts or omissions
of the permanent custodian or custodians of the child, the department may
automatically assume either family supervision over the child and the child's
permanent custodian or foster custody of the child; provided that, in any
event, the department shall immediately notify the court and the court shall
set the case for a permanent plan review hearing within ten working days,
unless the court deems a later date to be in the best interests of the child;
and

(7) An authorized agency shall not be liable to third
party persons for the acts of the child solely by reason of the agency's status
as permanent custodian of the child.

"Permanent plan" means a specific
written plan prepared pursuant to section 587-27.

"Permanent plan hearing" means a
hearing held pursuant to section 587-73.

"Permanent plan review hearing" means
any hearing, subsequent to a court ordered permanent plan, held pursuant to
section 587-73(b).

"Police officer" means a person
employed by any county in this State to enforce the laws and ordinances for
preserving the peace, safety, and good order of the community or an employee
authorized by the director of public safety under section 329-51 or 353C-4 to
exercise the powers of this chapter.

"Preponderance of evidence" means
evidence which as a whole shows that the fact sought to be proved is more
probable than not.

"Protective custody" means the legal
status of a child whose physical custody is retained by a police officer under
this chapter in order to protect such child from imminent harm.

"Reasonable cause to believe" means
reasonably trustworthy evidence which would cause a reasonable person of
average caution to believe.

"Review hearing" means any hearing
held pursuant to section 587-72.

"Relative" means a person related by
blood or adoption, or a hanai relative, as defined in this chapter, who is
willing and able to safely provide support to the child and the family, as
determined by the court or the department.

"Safe family home guidelines" means
the guidelines set forth in section 587-25.

"Service plan" means a specific
written plan prepared pursuant to section 587-26.

"Temporary family supervision" means
a legal status created under this chapter pursuant to an order of the court
whereby the department assumes the duties and rights of family supervision over
a child and the child's family members who are parties prior to a determination
at a disposition proceeding.

"Temporary foster custody" means a
legal status created under this chapter with or without order of the court
whereby the department assumes the duties and rights of a foster custodian over
a child.

"Temporary foster custody hearing"
means a hearing held pursuant to section 587-53.

"Threatened harm" means any
reasonably foreseeable substantial risk of harm to a child with due
consideration being given to the age of the child and to the safe family home
guidelines, as set forth in section 587-25. [L 1983, c 171, pt of §1; am L 1986,
c 316, §2; am L 1987, c 339, §4; am L 1992, c 190, §6; am L 1998, c 134, §3; am
L 1999, c 153, §1; am L 2001, c 51, §1; am L 2006, c 159, §2; am L 2007, c 106,
§1; am L 2008, c 199, §2]

Note

Subsection (e) of section 587-73 referred to in the
definition of "permanent custody" was deleted by L 2000, c 78, §1.

Case Notes

Department's rules implementing foster custody obligations of
section were contrary to statutory purpose; section does not relieve department
of duty to provide for needs of children taken into custody on basis of their
relationship to foster parents. 73 H. 15, 827 P.2d 1144.

Responsibility of department of human services discussed,
where family court erred in concluding that adoption agreement, which allowed
termination of foster board payments prior to completion of adoption process,
violated public policy. 74 H. 409, 849 P.2d 55.

Although child's failure to exhaust administrative remedies
available under the federal Individuals with Disabilities Education Act
precluded family court from ordering health department to pay for child's
mental health services, child's status as "ward of the state" created
an independent state basis that obligated the State to pay, which the human
services department, as child's co-custodian, was ultimately accountable for.
96 H. 272, 30 P.3d 878.

In light of this section and the permanent plan objective to
"maintain the relationship between the children and their birth
family", parents correctly contended that family court should have granted
their leave to intervene, and family court abused its discretion by denying
parents the opportunity to present evidence to show that visitation was in the
best interests of the children. 109 H. 399, 126 P.3d 1086.

As foster guardian of a minor child, the State may remove
child from foster caretakers and place child with adoptive family without
necessity of family court approval and without regard to fitness or stability
of foster caretakers. 7 H. App. 547, 784 P.2d 873.

As permanent custodian's "duties and rights of a legal
custodian and family member" are subject to the ultimate control of the
family court, court did not abuse discretion when it ordered that children not
be removed from current foster family placements without prior court approval.
103 H. 130 (App.), 80 P.3d 20.